Democracy and the death penalty

An evolving debate

MY PRINT column this week reports on a striking evolution in the death-penalty debate in America. There have been a spate of successes and partial victories by abolitionists in a string of states. These have ranged from the formal scrapping of capital punishment in five states since 2007 (at one end of the scale of ambition), to legal manoeuvres to block executions by mounting technical challenges to the cocktails of drugs used to kill convicts by lethal injection, at the other. More recently, a series of governors have signalled that they would sign a bill abolishing executions if sent one by their state legislature.

The column notes that there is nothing to say that the trend towards abolition must necessarily continue, and concedes that overall public opinion remains clearly in favour of the death penalty, with around 60% or more of Americans saying they want it retained as a punishment for murder. But it argues that something big has already changed: politicians with national ambitions are becoming braver about siding with the abolitionist camp. That is a big change since a generation ago, when politicians were haunted by memories of Michael Dukakis, and how his wonkishly expressed opposition to capital punishment in a televised debate sank his 1988 presidential run.

That development coincides with a tactical shift in the abolitionist camp. The case against the death penalty rests on several arguments.

There is the problem of executing the innocent, illustrated by the more than 100 prisoners exonerated from death row since capital punishment resumed in 1976, after a brief abolition by the Supreme Court.

There is the problem of the arbitrary application of the death penalty. In America, most executions are carried out in a handful of states, such as Texas, Florida and Oklahoma, and most death sentences are sought by prosecutors in a handful of counties in such states. Those rich enough to afford decent lawyers are less likely to be sentenced to death. And, as demonstrated by several painstaking studies (examples here and here), those who kill whites are several times more likely to be sentenced to death than those who kill blacks (though some of that racial skew is probably caused by the difficulty of finding juries in majority-black districts willing to impose death, so that prosecutors do not try).

There is the question of whether executions can ever be carried out in a way that does not amount to a cruel and unusual punishment. I would argue that this is a hurdle that becomes ever higher for death-penalty advocates to jump, as society becomes less and less accustomed to death as a public, visible phenomenon. If you doubt that, just read the words of state governors who actually have to sign death warrants and send their constituents to be strapped down and injected with poisons. While some, such as George W. Bush and Rick Perry of Texas, make a point of saying that they sleep soundly after executions, others disagree. My column cites the governors of Arkansas and Oregon, both of whom have presided over executions, and both of whom have now come to find the process of deciding who deserves to die so agonisingly difficult that they would favour abolition.

Finally, a growing number of studies have attempted to probe whether the presence of the death penalty has a deterrent effect. Politicians in favour of abolition point to the fact that death-penalty states (which are mostly in the south) have higher murder rates than non-death-penalty states (many of which are in the northeast). In truth this is hard to prove either way, because there are such a small number of executions compared to murders (a few dozen each year in America, next to many thousands of homicides), and because so many other factors affect crime rates, from poverty to policing to unemployment levels to the ownership of guns and the proportion of young men in the population. Indeed, a large-scale review of three decades worth of studies into deterrent effects, by the National Research Council of the National Academies, effectively declared them junk science and warned against anyone pretending to know what does and does not motivate murderers.

The abolitionist camp has made its greatest strides, arguably, by playing down moral arguments against executions, and playing up practical concerns. They note that years of funding endless appeals that often last decades, together with the costs of guarding prisoners on death row, means that—counter-intuitively—it is much cheaper to lock prisoners up for life without parole than it is to seek to execute them. Personally, I find that argument a little queasy-making, not least because it prods some zealots for execution to call for appeal rights to be curtailed.

More shrewdly, abolitionists have made sure to promote life without parole as the alternative to execution, taking care of the question of the worst of the worst being allowed out to commit fresh crimes.

All of this is pretty pragmatic, if you check opinion polls by such outfits as Gallup or the Pew Center for Research. These find that most Americans support the death penalty (though that support has fallen from 80% a generation ago to around 60% today). Most Americans think that executions are morally acceptable and applied fairly in America. Yet majorities also believe that the innocent are likely to have been executed by mistake, and are sceptical that executions have a deterrent effect. When offered life without parole as an alternative punishment to execution for murder, Americans divide almost evenly.

It is also too simple to talk about Americans as a block. The 2012 pre-election American Values Survey by the Public Religion Research Institute polled voters on whether they favoured life without parole or execution for murderers. It found sharp partisan, racial and gender differences.

The story of the last few years has been of an abolitionist movement that has been refining and honing its arguments with ever greater success. However, and I write this as someone who is a moral absolutist against the death penalty, the abolitionist camp has not done so well tackling a gigantic question: that of democracy.

In every Western democracy that has scrapped the death penalty, politicians have acted against the wishes of a majority of voters. If you were to draw a pyramid of accountability (or its lack), the pinnacle would be occupied by the European Union, which has made abolition of the death penalty a condition for membership of the club, irrespective of the wishes of any voter or political party. A European politician running on a platform of restoring capital punishment would be wasting his and the voters' time, unless he was willing to leave the EU as well.

Next on the pyramid come those technical lawsuits blocking executions in death-penalty states, or the actions in the Supreme Court which outlawed executions for the mentally retarded and juveniles, as unconstitutional. Then, arguably, come the actions of elected governors such as Mario Cuomo of New York, who spent 12 years single-handedly vetoing bills from his state legislature seeking to restore the death penalty (New York brought the penalty back under his successor, only to abolish it again a few years ago).

The next tier is occupied by state legislatures which vote to abolish the death penalty even though majorities of their voters support its retention. Finally, on the most directly democratic tier, come state-wide referendums and ballot initiatives.

And here opponents of the death penalty who support direct democracy have a problem. Because no referendum has yet passed. One just failed narrowly in liberal California, and in most states, most politicians suspect that ballot measures are more or less unwinnable. In Colorado, the question is acutely topical. Four state legislators have sponsored a fresh attempt to abolish their state's death penalty. Two of the four represent Aurora, the town which last summer witnessed a mass killing in a cinema. But a third Aurora representative, who is a staunch advocate of the death penalty, in part because her own son was murdered and his killers currently sit on death row, is seeking to have the question put on the ballot in 2014, for all voters to decide. It is not clear whether her ballot initiative will be approved by the state legislature. What is clear is that abolitionists hope it is not, because they fear they would lose.

So is abolition democratic at all? That depends on what version of democratic accountability you favour. The most combative abolitionists, such as Mario Cuomo, openly argue that they know better than their voters, and are saving them from their baser instincts. This represents the representative model eloquently outlined by Edmund Burke, when he told his 18th century constituents in Bristol that while he was most interested in their opinions, and would attentively listen to them, he would reject any talk of "authoritative instructions" or "mandates issued" which he might be expected to obey, even when they ran counter to his own conscience and judgment.

I have studied the death penalty for more than half my lifetime. I have debated it hundreds of times. I have heard all the arguments, analyzed all the evidence I could find, measured public opinion when it was opposed to the practice, when it was indifferent, and when it was passionately in favor. Always I have concluded the death penalty is wrong because it lowers us all; it is a surrender to the worst that is in us; it uses a power—the official power to kill by execution—that has never elevated a society, never brought back a life, never inspired anything but hate... And it has killed many innocent people...

Because death penalty proponents have no other way to defend this policy, they cling unabashedly to the blunt simplicity of the ancient impulse that has always spurred the call for death: the desire for revenge. That was the bottom line of many debates on the floor of the state Senate and Assembly, to which I listened with great care during my tenure as governor. It came down to "an eye for an eye, tooth for a tooth."

If we adopted this maxim, where would it end? "You kill my son; I kill yours." "You rape my daughter; I rape yours." "You mutilate my body; I mutilate yours."

Because the death penalty was so popular during the time I served as governor, I was often asked why I spoke out so forcefully against it although the voters very much favored it. I tried to explain that I pushed this issue into the center of public dialogue because I believed the stakes went far beyond the death penalty itself. Capital punishment raises important questions about how, as a society, we view human beings. I believed as governor, and I still believe, that the practice and support for capital punishment is corrosive; that it is bad for a democratic citizenry and that it had to be objected to and so I did then, and I do now and will continue to for as long as it and I exist, because I believe we should be better than what we are in our weakest moments

In contrast, Mitch Daniels, interviewed in 2011 while he was still the Republican governor of Indiana, came fascinatingly close to admitting to a personal dislike of capital punishment while bowing to the superior force of popular opinion. Asked on CNN about capital punishment, Mr Daniels said that signing death warrants had given him his "loneliest" nights in office, and noted, with something a lot like relief, that no fresh death sentences had been handed down by Indiana juries, suggesting that the policy was "diminishing" by itself. He recalled:

It's the one thing I was least prepared for in taking on this assignment. The first such decision came—the first two or three came very quickly. I don't understand anybody who says they don't have at least some ambivalence about this subject, really on either side.

In our case, I'll tell you how we've resolved it. I, after an awful lot of thought and reflection and counseling with other people—I—the people of our state have said very emphatically that they believe, at least in the most extreme cases, this penalty is appropriate. I've decided it's not my—it was not for me to substitute my own individual—any individual judgment I might have for theirs

So how do politicians pushing for abolition defend their actions? After interviewing politicians for the print column, I was struck by how several made the same point: that they had spent some years pushing for an end to executions, and that at subsequent elections, they had been braced for a backlash or attacks by opponents, but that they never came. They seemed to be claiming that sort of absence of a backlash as a sort of back-to-front mandate. Is that reasonable? I think it is, but mostly because those same politicians also make the case, in public, that they ultimately view the death penalty as a moral issue.

That has to be the right approach. The death penalty must be a moral question, before it is an argument about costs or deterrence. Either it is right for the state to put people to death or it is not. I would believe that even if the death penalty were cheaper and proven to be a deterrent.

Abolitionists routinely argue that referendums are unwinnable because it is impossible to get voters to focus on the question clearly, and not get sidetracked by individual, high-profile murder cases. They add, sometimes, that civil rights for blacks would never have been achieved if put to a referendum.

As a practical matter, it cannot be a good idea to go too far down that road of defying popular will. Just look at the 1970s, when the Supreme Court abolished and reinstated the death penalty in a matter of a few years. Or the experience of Mario Cuomo in New York, who could only block capital punishment until he left office, when it was reinstated. Yet in states whose state legislatures have voted in recent years to abolish it, after long debate, there are no signs of it being brought back on to the statute books.

With apologies for a long posting, my conclusion is this. The case against the death penalty is strong and getting stronger. But there is a right and a wrong way to try to stop executions, especially in a country like America with such a strongly democratic tradition. At a minimum, the decision must be taken openly and for moral (rather than technical) reasons by elected politicians who face being thrown out of office if voters disapprove of their actions. To date, that is the path taken by 17 states and the District of Columbia. May many more follow, but they should do it the right way.

Nothing meaninless about pragmatic objections. Such as:
a) it costs more to execute someone (after all the mandatory appeals, etc.) than it does to just lock them up for life,
b) the probability of a mistake is substantial.
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Especially since there is zero evidence that the death penalty provides any signifcant deterrance. Much as advocates would like to believe otherwise, nobody says "I would kill this person, but then I would get killed rather than just locked up for life, so I won't."

Death penalty in US is a joke, it basically tells criminals that "it is OK to kill one, try not to kill two. What? you already killed four? don't worry, you will be safe for at least 15 years, god knows what will happen."
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Do you think a criminal would have killed a cab driver for 20 dollars had death penalty been effectively enforced?

Hi,
Democracy and the death penalty. An evolving debate. The death penalty the ultimate kick of all. As I have told you I personally am against the death penalty. I have understanding for those who console such. It may sound disrespectful but consider the economics of the death penalty. The cost of putting a person to death is far more than a life imprisonment, the judicial passage and the logistics of execution are expensive in America and is being put to death a punishment? In a banana republic the death penalty is cheap.

In any society, murder of one citizen by another is completely and utterly illegal. Citizens are the grass roots on which a state rests. Now we ask fundamental question, if murder is illegal at grass roots, why should it be legal when it cones to a state. Why should the state be exempted from murder and not the citizen? Justice and rule of law entails application of the very same principle to both.

"For every complex problem there is an answer that is clear, simple, and wrong." - H. L. Mencken
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The death penalty has many, many problems, but the biggest of them is the most fundamental:
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It doesn't work.
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With one curious exception, Japan, the countries with the lowest rates of crome - not ony of murder but of almost all categories of violent crimes - are those that have abolished the death penalty.
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The death penalty is a sign of a society that is politically immature.
It is a sign of a society that has problems with violence, but is in denial about those problems.
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The error in your thinking is that you have the wrong objective.
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Your highest value is punishing crime.
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The better objective is to prevent crime.
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Consider:
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US (330m people): 15,000 gun homicides/year
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Wesern Europe (470m people): fewer than 1000 gun homicides/year.
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Would you rather have the death penalty for 15,000 murderers?
Or would your rather have 14,000 fewer people murdered?
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"You kill someone, you deserve to die."
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Might be a good sound bite.
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It certainly reflects the maturity and insight of a six year old boy.
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Turns out that it isn't very good public policy when it comes to solving real world problems.

I remember watching Cuomo on Ken Burns' documentary on baseball, where Cuomo talked about being a minor leage baseball player, as I recall.
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And, me thinking that I'd never heard anyone speak so eloquently about his love for a game.
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That really is a special talent. This stuff is hard.

It was always a little stunning when Cuomo got started. His speech was the highlight of the '92 convention. I'd put him somewhere below Lincoln near Kennedy among American orators. All of those come after the itinerant preacher in Twain's The War Prayer.

I support your premise about morality and democracy, and paragraph spacing. And, especially spacing.
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In fact, I'm now in the process of collecting signatures for a referendum to revert back to the previous spacing policy.
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Common sense spacing now, common sense spacing tomorrow, and common sense spacing forever!

There is a problem with executing innocents? oh please the US doesn't give a damn who it executes as long as they do not have to pay compensation to the victims families, the US has the higher numbers of prisoners locked up more than any other country in the world, many Americans still think killing these useless vermin in prisons does better in the long run. The rest of the world will abolish Capital Punishment before the US does.

The argument here has nothing to do with the supposed 'rights' of the criminal. The question here is what kind of person you are -- who wants to kill another human being. Sure the psycho killer (gang on gang, or killing the innocent family) 'deserves' a lot. And they should be locked away from harming others (and themselves). But the issue here is what kind of humanity, what kind of society you want to live in. Do you want to live with people who think killing is a good idea? Or do you want to live with people who care about living peacefully in civil society.

Don't reply with arguments about war and self-defence. These are totally different issues. Killing is sometimes necessary among us humans, but execution, after long, careful consideration is simply brutality.

Dangit! I thought my concision would bring consensus and peace across the land.
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One of the things I think society hasn't quite solved is the right pace for Democracy. Unaccountable authoritianism and constant, instant referenda on any issue with majority rule both strike me as semi-apocalyptic dystopia.
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When you look at the founding of the United States, another way of describing the checks and balances is that there were various categories of progress (bending the practice of government to the public will) that were meant to be settled at different speeds. I'm pretty comfortable with the idea that the more precipitate the decision, like executing someone or changing the constitution, the longer it takes to change the practice.
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Now will you submit?

I seriously doubt your ability to understand anything about clinical psychology, from the intemperate, absolutist, and ... way you address this issue. Calling other people naive in your way, calling for killing, torturing in the over-the-top emotional way you do shows you have the problem, not me.

And you fail to understand my point, as well as my background (which includes an understandig of the psychology involved). Yes these murders (and others) are pyschopaths, and yes they should be removed from the streets as they are currently impossible to treat with current medical understanding. And no, putting them away is not 'coddling'. Not killing them is a way to protect myself (ourselves) from the extreme emotional state and barbaric frenzy you whip yourself into over this issue. There is nothing naive about keeping a level head.

J Kemp. Let us review. You wrote the following -
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"My view is those who committed this crime should be brutally tortured, and then executed. The rack, drawn and quartered, and worse if worse could be devised."
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Anyone who suggest torture, in my view, is a total nut. Reading your posts since then confirms my opinion all the more.
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In short, I think you're out of your gourd.

ashbird,
I am very calm and not in the least bit angry, so please stop with the condescending diagnosis of attitude and instructions.
"D18" decided to engage in a rude act directed at myself, not the topic at hand, and he knows better. As his posts reflect, someone taught him good manners some time ago, and he does know how to apply them when he wishes to.
My approach in this blog is to address the issues raised, and try to offer up well grounded posts.
On those rare occasions when people take personal swipes at me, it usually takes little effort to re-balance the scales from that inappropriate act by exposing the invariably obvious inadequacies of such individuals as are usually well manifest by their posts here. "D18" could simply apologize, but that act has apparently not crossed his mind, or at least not his keyboard.
As his posts indicate, "D18" threw a rock at someone who did nothing to him, but he made a bad choice in trowing a rock at someone who happens to own a very large quarry. If he doesn't like the fact-grounded boulders raining down on him, perhaps he should politely concede that it was an improper act on his part to throw that rock at another poster.
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There is an interesting split among posters here. Some focus on the issues raised, directly or indirectly by the article, and offer up information, opinion and analysis. Others mostly take swipes at other people's posts. I find the latter to be a not terribly useful contribution to this forum, and generally the province of individuals who are not very insightful or informed, and sometimes, these manifest the character traits of a poster who is simply a bully who appears to just "get off" on taking whacks at others. (I would stop short of characterizing "D18" that way at this juncture, though his habit of condescending is a bad one in view of his obvious limitations.) If you observe the dynamics of this blog, you will see what I mean. There is a big difference between those who offer original and well thought through content, and those who spend their energies kicking others in the shins. In my humble opinion, before aggressing towards another, I think it wise to accurately assess the target of one's intended verbal attack, as well as taking stock of oneself. "D18" is getting verball strafed here because he engaged in unprovoked verbal aggression, and he failed to make that a priori assessment of his relative exposure to consequences.
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As for "knowing" him, I think I have assembled what is very likely an highly accurate composite of "D18" through a quick sampling of his posts. If he wishes to continue to throw verbal rocks, he should expect the verbal equivalent granite boulders to keep pounding the already soft ground where he has constructed his wobbly-foundation arguments.

Attempts to "streamline" the appeals process to make it cheaper only serve to put more innocent people at risk for execution. Over 100 people have already been exonerated with our slow, plodding system. Many more innocent people would be put to death under a cheaper, quicker system. Also, the sentencing disparities have been found between murderers of different races and socio-economic backgrounds. The evidence is very clear that a Black man convicted of murder is far more likely to be executed than a White man in the same position.

You might find people had more time for your opinions, ztoa789, if you left the aggression and insults out of them.

There is undoubtedly more than one definition of 'civilization' but to exclude values from the concept is absurd. Anyway, the point is not rigidly literal, it is about humanitarian values that a civilized society should not be without.